Josephine
(Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty
Athletic Representative, University of Nebraska
The NCAA Division I Steering Committee
has proposed a new Division I governance structure. It retains an all-D I governance part and adds
an autonomous part for 5 Conferences (ACC, B1G, Big 12, Pac 12, SEC). One thing the Steering Committee got right. It acknowledges that the 5 Conferences need
autonomy, particularly to use our resources to enhance the treatment of
student-athletes. After that, there is
not much positive to say. Remarkably,
the proposal would institute a governance structure that may be worse than what
we have now.
First, autonomy apparently doesn’t
mean autonomy. The 5 Conferences had a
plan for autonomous governance. In
important ways the Steering Committee shot it down.
The Steering Committee lists
specific subject areas for autonomy, leaving little room for the 5 Conferences to
respond to issues not currently anticipated.
It accepted the 5 Conference voting model: one vote for each of the 5 Conference schools
and also student-athlete voters. But it proposes a supermajority vote to adopt
policy or bylaws (2/3 of all voters and a vote in favor of 4 of the 5
conferences). That makes it
difficult, if not impossible, to get much of real substance done. And if we do?
The CEOs from the 5 Conferences on the DI Board
can vote a bylaw down if it has an undue impact on competitive equity for everyone
else. Competitive equity for schools
with lesser resources always translates into limits on what can be done to benefit
student-athletes. Restricting this
override to CEOs from the 5 Conferences is better than having the full Division
I Board weigh in. Nonetheless. The mantra of competitive equity is the very reason
why autonomy is needed. And, yet, here
it is again. Another major constraint is
that it appears that the 5 Conferences will have neither the authority to
interpret the bylaws we adopt nor to grant waivers from them.
The
combined DI governance side is no better.
The CEOS no longer will be an operational board. Certainly the right move. On their own campuses they oversee the
medical school. But they likely would
not presume to act as dean and they certainly would not try their hands at
surgery.
There
will be a new Council to do the heavy lifting. Again, the right move, at
least in theory. The plan is a Council
of 38 members, with 60% ADs. Do ADs
need to be more involved and have more influence? Absolutely.
They need to have substantial input
in the development of the rules by which they operate. But 60 percent is too much, especially as Council
seats also are reserved for other athletic administrators. The end result may be fewer than five Faculty
Athletic Representatives on the Council and perhaps none from the 5
Conferences. No issue is exclusively
athletic or campus/academic. Optimum
policy results from full vetting with all perspectives at the table, something
that will be missing from the new Council.
By my count, the NCAA and 5
Conferences are facing three antitrust lawsuits, the Keller/O’Bannon litigation,
concussion lawsuits, and the Northwestern student-athlete union effort. In one way or the other, all of these claim the
collegiate model is a sham. The Steering
Committee proposal is an extraordinary governance solution for an NCAA and
universities attempting to confront the perception and embody the reality that
intercollegiate athletics are different in kind from professional sports
because we embody a COLLEGE model.
I believe it was Winston Churchill
who said that you should never waste a good crisis. Unfortunately, it looks like that’s exactly
what DI is about to do.
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